[Federal Register Volume 60, Number 154 (Thursday, August 10, 1995)]
[Rules and Regulations]
[Pages 40756-40758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19807]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 2
RIN 2900-AH00
Delegation of Subpoena Authority and Description of Means of
Service
AGENCY: Department of Veterans Affairs.
ACTION: Interim Final Rule with Request for Comments.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
regulations concerning authority of VA officials to issue subpoenas:
(1) by revoking the delegation of authority to the Inspector General
and subordinate officials, and (2) by adding a delegation of authority
to the Under Secretary for Health and certain subordinate officials.
The regulations are also amended by specifying means of service for VA
subpoenas. These amendments are intended to make the Department's
delegations of subpoena power consistent with legal authority and to
ensure that VA has the means to obtain information necessary to
determine whether individuals are entitled to income-based benefits.
DATES: This interim final rule is effective on August 10, 1995.
Comments must be received on or before October 10, 1995.
ADDRESSES: Mail written comments concerning these proposed regulations
to: Director, Office of Regulations Management (02D), Department of
Veterans Affairs, 810 Vermont Ave., NW, Washington, DC 20420; or hand
deliver written comments to: Office of Regulations Management, Room
1176, 801 Eye Street, NW, Washington, DC
[[Page 40757]]
20001. Comments should indicate that they are submitted in response to
``RIN 2900-AH00.'' All written comments will be available for public
inspection in the Office of Regulations Management, Room 1176, 801 Eye
Street, NW, Washington, DC 20001, between the hours of 8:00 a.m. and
4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Barry M. Tapp, Deputy Assistant
General Counsel (023A), Office of General Counsel, Department of
Veterans Affairs, (202) 273-6334.
SUPPLEMENTARY INFORMATION: This document amends 38 C.F.R. Sec. 2.1 to
revoke delegations of authority to the Inspector General and
subordinate officials for issuing subpoenas, and to provide delegations
to the Under Secretary for Health and certain subordinates to issue
subpoenas, and to specify means of service for VA subpoenas.
Revoking Current Inspector General Authority To Subpoena
Title 38 U.S.C. Sec. 5711 authorizes the Secretary of Veterans
Affairs and those employees to whom the Secretary delegates such
authority to issue subpoenas for, and compel the attendance of,
witnesses within a radius of 100 miles from the place of hearing and to
require the production of documents. (38 U.S.C. Sec. 5713 authorizes
Federal district courts to enforce VA subpoenas.)
The Secretary delegated subpoena authority to, among others, the
Inspector General, Deputy Inspector General, Assistant Inspector
General for Investigation, and Deputy Assistant Inspector General for
Investigation. No subpoenas have been issued pursuant to this
delegation and the delegations to the Inspector General and
subordinates of that office are revoked by this document.
The Inspector General Act of 1978 (the Act) established the Office
of Inspector General in the VA. The Act mandated the duties of the
Office, specifically giving the Inspector General investigative powers.
The Act limited the subpoena authority of Inspector Generals to
requiring the production of documents. The Act also established the
Inspector General as an official independent of the control of agency
heads. In a leading case on the authority of Inspector Generals
established under the Act, the United States Court of Appeals for the
District of Columbia Circuit held that ``[i]f the agency head may
delegate his subpoena authority to the agency's inspector general, . .
. the congressional scheme is disrupted,'' making such delegations
inconsistent with the Act's uniform distribution of power to its
Inspector Generals. United States v. Iannone, 610 F.2d. 943, 947 (D.C.
Cir. 1979). Accordingly, there is no authority for the delegation of
subpoena power to the Inspector General and subordinates.
Delegating Authority to the Under Secretary for Health
Federal law authorizes the Secretary to operate income matching
programs with other agencies to verify the income of VA beneficiaries
so that VA may obtain information necessary to determine whether
individuals are entitled to income-based benefits. 38 U.S.C. Sec. 5317.
The Secretary has delegated authority to the Under Secretary for Health
to operate VA's income matching program. The Director, Income
Verification Match Center, and the Associate Director for Operations
have program responsibility for this program.
VA may not act on adverse information from income matching programs
unless the data are independently verified. But sources for verifying
information are not obligated to disclose the data merely at VA's
request. Consequently, the Under Secretary for Health, the Director,
Income Verification Match Center, and the Associate Director for
Operations, Income Verification Match Center, are hereby delegated
authority to issue subpoenas, compel the attendance of witnesses, and
require the production of evidence.
Means of Service
This document also adds means of serving subpoenas issued by
designated VA officials. In this regard, the regulations are amended to
add the following:
Subpoenas issued pursuant to this section may be served by
registered or certified mail, return receipt requested, addressed to
the witness only. Personal service by any VA employee or other
authorized person may be made where authorized in writing by the
issuing official.
Administrative Procedure Act
This interim final rule constitutes rules of agency organization,
procedure, or practice. Accordingly, pursuant to 5 U.S.C. 553, we are
dispensing with prior notice and comment and with a 30-day delay of the
effective date.
Regulatory Flexibility Act
The Secretary certifies that this regulatory amendment will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. Secs. 601-612. This amendment will affect only individuals and
will not directly affect any small entities. Therefore, pursuant to 5
U.S.C. Sec. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
There are no programs listed in the Catalog of Federal Domestic
Assistance which will be directly affected by this rule.
Executive Order 12866
This regulatory action has been reviewed by the Office of
Management and Budget under Executive Order 12866.
List of Subjects in 38 CFR Part 2
Authority delegations (Government agencies), Veterans Affairs
Department.
Approved: June 20, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 2 is amended
as set forth below:
PART 2--DELEGATIONS OF AUTHORITY
1. The authority citation for part 2 continues to read as follows:
Authority: 72 Stat. 1114; 38 U.S.C. 501, unless otherwise noted.
2. Section 2.1 is revised to read as follows:
Sec. 2.1 Delegation of authority to employees to issue subpoenas, etc.
(a) Authority to issue subpoenas. Employees occupying or acting in
the positions designated in paragraph (b) of this section shall have
the power to issue subpoenas for (by countersigning VA Form 2-4003) and
compel the attendance of witnesses within a radius of 100 miles from
the place of hearing and to require the production of books, papers,
documents, and other evidence. Issuing officials shall use discretion
when exercising this power.
(b) Designated positions. The positions designated pursuant to
paragraph (a) of this section are: General Counsel, Deputy General
Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional
Offices and Centers having insurance or regional office activities,
Under Secretary for Health (for income matching programs), Director,
Income Verification Match
[[Page 40758]]
Center (for income matching programs), and the Associate Director for
Operations, Income Verification Match Center (for income matching
programs).
(c) Means of service. Subpoenas issued pursuant to this section may
be served by registered or certified mail, return receipt requested,
addressed to the witness only. Personal service by any VA employee or
other authorized person may be made where authorized in writing by the
issuing official.
(d) Fees and mileage; district courts of the United States. Any
person required by such subpoena to attend as a witness shall be
allowed and paid the same fees and mileage as are paid witnesses in the
district courts of the United States. In case of disobedience to any
such subpoena, the aid of any district court of the United States may
be invoked in requiring attendance and testimony of witnesses and the
production of documentary evidence, and such court within the
jurisdiction in which the inquiry is carried on may, in the case of
contumacy or refusal to obey a subpoena issued to any officer, agent,
or employee of any corporation or to any other person, issue an order
requiring such corporation or other person to appear or to give
evidence touching the matter in question, and any failure to obey such
order of the court may be punished by such court as a contempt thereof.
(Authority: 38 U.S.C.A. Secs. 501, 5711)
[FR Doc. 95-19807 Filed 8-9-95; 8:45 am]
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